Untitled Texas Attorney General Opinion ( 1947 )

Hon. D. H. Utlsy OpInIon NO. v-173
County Auditor
Clay county Re: Authority 0r the commis-
Henrietta, Texas sioncrs’ court or Clay
County to equip the “Clay
County Memorial HospItalW.
Dear Sir:
I
Your request for an opinion of this Department
on the above subject matter Is aB followr:
“Clay County citizens have donated money
and bought stook In a Hospital to be erected
In Henrietta, same befw called Clay County
Ysmorial Hospital. The aontract for erection
of this building has been let.
“The County oovernment has no intezest
ao rsr.. The Hospital Cowittee has oalled
on the Commlsslonera~ Court for aid In aqu%p-
: ping the laboratpry.
’ “Clay County has a contract vith the
Wichita Fnl.ls Clinfc UoapItsl for the cere or
Clay County’s inc’irents Hospitalization, which
In 1946 amounted to $5,400.
“The :>~uestlon---Can SL.:y Sounty lenally
equip the la boratoxy out of Permnent Impmve-
ment Fund. on a contrbct nfth aaid Hospital to
care for Clay Coun)g’a Indllpents, until said
County Is reimbursed ror money use6 In.*equlp*-* +---
pin said laboratory?*
We quote rrom a letter of J.pril 18th from Hon.-
A. 9. Hodges, County SuPqe or Clay County, In answer to
OUTrmpast for adaitioml information:
“In reply to your letter of April 12 In
referenoe to Clay County InvestIng money In
eqaipment for a hospital owned by 8trek holdek.
Wo have made ao ebntrrot with direatore at this
Him. D. ?I. Utlay, Page 2 v-173
time but before we put any money Into It we will
have o contract with the dfrectors of this hospi-
tal to the effect that It will be owned by the
Qounty and the Title will be vested in the County
until such time that the County will be reimbursed
hy services ~from t?e hospital for indigent patients.
We at this t ims have to make a contract with out of
Gounty hoapitnla to toke ccr,e of our patients whfch
Is very inconvenient. The County proposes to pur-
chase the naI.d Laboretory equipment out of the Per-
manent Znprovement Fund .”
It has been repeutedly held that the Commission-
ers’ Court is a Court of lI.mi ed jurisdiction and it may
exercise only such authoritp iis is conferred by the Con-
stitution and statutes of this State. ‘ir’e cite the follow-
Ing authorities:
Article V, Seo. 10, Tex. Const.; Art. 2351,
Rev. Civ. Stat. of Texas; ‘Tex. Juris., Vol. 11,
paSea 563-566; Bland vs. Orr, 39 S.X. 558; Nunn-
‘Warren PublIshin% Company vs. Hatohinson County,
45 3.w. 2a, 651; Ho’?6 vs. Cnmphell, 48 3.W. 2d
515; Lond.manvs. St&t~e, 97 S.X. 2P 264: El Paso
County VS. &lam, 106 S .:‘;. zd , 3O3: Reward vs..
Henderson Oounty, 116 3.;:;. 2d, 2731; Dobson vs.
Marshall, 118 3.X’. Zd, 621; Mills County vs. Lam-
pasas County, 40 3.ri. 404.
The authority of the Co.mfaIseIonarst Court to
make a contract on the oounty’s behalf is strictly litn-
Ited to tint conferred either expressly or by reasonable
implication by the Constitution and statutes of this State,
and a county may contract only in the manner on’ for the
purposes provided by stctute and Is net bouna by a con-
;y2;;fep; ;y”,pyg?~,“: n”P;,“,~g;,:;; F;‘,‘; *;yo
eci ios.
The authority of. the CommIssIoners~ Court to
establish or enlarge a oou*ty hospital Is found under
Chapter 5, Title 71, Ati. 4478, V.C.3. The provisions
or said ArtIole pertain to only county hnepltnls end
would not, therefore, authoriee the expenc?iture of ooun-
ty rtis ror the purposes 0r equipping; a hospital not
olunad or operated by tha oouuty.
We quote the r0110w* pertinent constitutional
pzpvisions:
,i .
i
&m. D. IX. Dtley, Page 3, V-17a
*The Legialaturs shall tulvo no power to
authorize any aounty, bity, town 0~ other polit-
loal oo omtion or rubdivision of the S.Wts
to lend ?1ts credit ot, to~gmant pub110 money or
thing or value in aid of, or to any lncllviQw1,
aasociatLon or 4or oration whatsoever, . . .*
(Art. III, 8043. St !
*No oounty, aity, or other munloipal cor-
poration &all hersoftr.r bsoome a oubaaribsr to
the oapltal of uny prfvet,e corporntlon or aeso-
Ye know ot no oonstltutionaL or statutory pro-
&eion which would authorize the Oommisaioners’ Court
Or Clay County to make 6 oontract v;ith the “Clay County
Eemorial Bodpital*, 8 prirate LNtitrYtioO, vihorsby. the
oounty obligates itoeli to equip the leboratory of such
hospital, end the hospitel obligetea itsdr to oare r0r
the oounty’s lndiqents until the county is relmhursed
for the expenditure of money in equippinK the laboratory
of lu4h hoapitsl. MOrOOWt?, it is our opini.on that the
Legialaturc is prohibited from authorizing the .oounty
to enter into tb4 “joint venture * that is now under oon-
sldsrotion. Although ArUcle 4491, V .C .S . , RuthorlzinS
a county which has no city with a populetion of more
then 10,000 to contrect vllth any legally incovoo~ted
association or hospital for the cere o!’ the indigent
siok, said Article cannot be oonotrued to authorize R
contract which would violate ths above ouoted constitu-
tlonal provtiion.
In tfM 0~44 or AApt vs. Oincinneti, 35 L.R.A.
737, the Supreme dourt or Ohio construed the oonstitution-
al provision.of tbat Stste which is very slmilnr to Arti-
~14~III, Sec. 52, of our State Constitution. We quotes
the following i-mm seid oaae on pp. 741-742:
“The 44dou4 quOrtlOn la whether this 8 S
lb constitutional. 84CUOn 6 wf Article 8 or
the Constitution is BE followa: *The general
assembly shall .never euthorlas any oounty, city,
town, or township, by rote of its oltizens, or.
otherwiee, to beeone n,4tOokhlOer in any joint-
stoak company, oorporatlm3, or aesoolation whet-
ever; or to raise money for or loan lta credit
. -
Han. D. Ii. WJsy, Page 4, v-173
to, or in aid .0r, any such company, oOrpOratfOn,
or assoclation.~ Th? ruii soaps. of this
_ . section
.``S
of the Constitution his not yet been aecermlnea
by this court. In Walker vs. Cinoinnati;T;~ (33;"
St. 15, 8 Am. Rep. 24, the oourt says:
chief which this section interdicts is a business
partnership between a municipality or subdivirion
or the state and inaividuala and private oorpora-
if it should! bk deemed wise ana &onomical to
authorize munloipalitlss who own vraterworks, or
gas works, to lease them lea a means for supplying
the public needs, wo know or no constitutional
impediment. But thls~ is a diiferent thing from
inveatinr bublia money in the enterprises of others,
or rrom ~ihina them with money or cledit. In on4
o&4, the whole aroorietarr intareat i! bin the pub-
lie, and its euthoritv
-- _______" ia``~&``unt, while in the
other, the reverse is t #rue.' This section of the
Coaatitution not only~prohibits a 'business partner-
ship' which carries the idaa of a joint or undivided
interest, but it goes further, and prohibits a mu-
nioipality from being the owner Of part of a proper-
ty which is owne& and controlled in part by a cor-
the use, or having property the use of which it
does not need. it may lease tha same to others;
Under the iaota submitted, Clay .Oouaty would
be contemplating the purchase of equipment to be ,used by
the Clay County &e,aorial Hospital, a privste, charitable
iMtitutfon. In via* or th4 rumgoirq muthority, such a
.i r.
Bon. D. .fl. Vtloy, Paar 5, V-173
&oadure would vlolrta Art. IIT, 900. 52, and Art. XI,
Sea. 3, of our State Oonrtitution in tht pub110 moneys
would be expended for tha iurtheranoe of privste ,enter-
prise, and the county .w*rauld
not control the property in
which it invested its public funds.
Therefore, it 18 our opinion thst the Comis-
sloners’ Court or Clay Uounty doer not have the ,authotl-
ty to make a oontraot with ths Vlag County MamorlalHos-
pital*, a private, oharltable lnatltutlon, whereby the
oounty obligates itself to rquip tha lebomtory~ of such
hospital, and the hospital obllgatea itself to care for
the oounty’s indigent8 until the county .la r6in$med
r0r the expenditure or Y)Hf $n l qulppim .tbb hospital.
Ju
The Comnlseiollsr8’. court or Clay county
doe8 not have tha ruthority to Pke a contract
with the *Clay Couaty Ysrsprlal llospital”, a
. private oharltablr lmtitution, whnby the
county obligates itself to equip the laboratory
of suoh hoepltal, and the herpital obligetas
itself to oere for the oounty’s.lndigents un-
tll the oountp ir roinburred rqr t&. expendi;
ture of sonay ln rqulpplry tll* &a 1tr1.
52, Art. III and 160. 2, Art. Xl, La. co%-
tution.
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